In this article, I again discuss the attempts by Samuel A. Hardy to ‘estimate’ the ‘cultural harm’ caused by non-professional metal detecting. I already discussed the serious methodological (and arithmetic) flaws in his original paper in an earlier contribution (Karl 2018a), highlighting why the results of his study were unreliable and thus anything but useful. In this contribution, I focus on the even more fundamental conceptual flaws underpinning his research, which lead to his fundamentally flawed methodology. Particularly crucial in this context is that not only do the assumptions he makes for conducting his study directly determine its outcomes, but that most of these assumptions are fundamentally flawed themselves. For instance, in his attempt to compare the different efficacies of different kinds of (more liberal as opposed to more restrictive and prohibitive) regulations of the practice, he only seriously considers to what extent these different systems (may) reduce the number of artefacts extracted ex situ, while neither considering how different regulatory systems affect reporting frequencies of finds made regardless, nor whether retaining the finds in situ will indeed preserve them until they might be recovered by professional excavation. Nor does he consider that artefacts simply retained, entirely unknown, in situ, are not a cultural good whose extraction from there causes ‘cultural harm’, but rather only gain any cultural value they may be assigned when they are extracted and thus become beneficial to humanity.
Perhaps most crucial however, for someone claiming to be interested in improving legal regulation, he shows astonishing disregard for the law, and a serious lack of understanding of what the law aims to achieve. Sadly, not entirely unlike quite a significant segment of other archaeologists, too, he appears to believe that the law, and especially heritage law, is there to allow us to achieve our goal, the (ideally total) protection of the archaeological heritage from anyone other than professional archaeologists. As a consequence, he substitutes his belief as to what the ‘spirit of the law’ should be for what it actually is, which has to be determined not by archaeological (or archaeologists’) bias, but by careful analysis of the intent of the legislator. Using the Austrian Denkmalschutzgesetz (Monuments Protection Law), it is demonstrated how such a careful interpretation is to be done, and why it is essential to undertake it, rather than seeing heritage law as a means which allows archaeologists to advance their own, personal, entirely private interests. This allows to demonstrate that, at least in Austria, it is not necessarily causing ‘cultural harm’ if archaeology is extracted ex situ, and that, indeed, most such extraction activities, including entirely unprofessionally conducted ones aimed at generating private economic profits, must actually be considered to be culturally beneficial and in the public interest.
The crucial lesson to be learned, thus, is that it is not we professional archaeologists who get to define what cultural values and what private actions are in the public interest and serve the greater common good, and not our values which reign absolute. Rather, it is for all citizens alike, via their duly elected representatives in parliament, to define what the cultural values of a particular society are, and what actions are in the public interest and serve the greater common good. Unless we understand that it is not we who are the absolute sovereign in all matters archaeological, but that, as everyone else too, are just one private interest group with particular (and particularly uncommon) interests, whose interests the legislature and the courts must balance with equally justified interests of others, we will never be able to actually advance our interests reasonably, and achieve the most effective protection of our values possible under the law.